Cases pit Native American sovereignty against NLRB authority

Are Native Americans subject to the authority of the National Labor Relations Board (NLRB), or does tribes’ right to self-government come first?

That’s the question being tested by several cases challenging tribal casinos. On Tuesday, the NLRB admonished Michigan’s Saginaw Chippewa Indian Tribe for preventing workers at its casino from talking about unionizing. The National Labor Relations Act bans such a policy. Or it would, if the tribe was subject to it.

On Monday, the Little River Band of Ottawa Indians Tribal Government, also of Michigan, took a similar case to the 6th Circuit, asking the appeals court to review an NLRB decision that restricted the tribe’s ability to regulate worker organization and collective bargaining on its land. A third case concerning the Chickasaw Nation is currently pending before the board.

"It is well established under the law that an Indian tribe's exercise of inherent authority is protected from infringement by a federal agency or board under color of a federal statute absent a clear directive from Congress," Kaighn Smith, a lawyer for the Little River Band of Ottawa Indians wrote in a brief to the NLRB.

The NLRB, for its part, is relying on a 1960 Supreme Court ruling that found the Federal Power Commission could use eminent domain to seize land from a tribe, and the 2007 D.C. Circuit case San Manuel Indian Bingo & Casino v. NLRB, which affirmed the NLRB’s jurisdiction over a Native American-owned casino on tribal land. The NLRB has said it will assert jurisdiction only over "commercial enterprises that are part of the national economy," not enterprises that serve governmental or tribal functions.